Yes, you can sue someone for filing a frivolous lawsuit against you, usually through a malicious prosecution or abuse of process claim brought after the original case ends in your favor. You also have faster tools inside the original case itself, including sanctions motions that can force the other side to pay your legal fees. Which path makes sense depends on timing, your evidence, and how badly the other party behaved.
What Makes a Lawsuit Frivolous
A frivolous lawsuit is one with no real basis in fact or law. The claim might rely on a legal theory no reasonable attorney would advance, demand damages with nothing to support them, or be filed without any investigation into whether the facts hold up. Losing a case does not make it frivolous. Plenty of reasonable claims fail. A frivolous claim is one so clearly baseless that no competent attorney would expect it to succeed.
Courts draw a line between aggressive advocacy and misuse of the system. Filing a complaint to harass someone, run up their legal bills, or pressure them into settling an unrelated dispute crosses that line. So does recycling claims that have already been rejected or pursuing theories that courts have repeatedly thrown out.
Suing for Malicious Prosecution
Malicious prosecution is the main tort for holding someone accountable after they file a groundless lawsuit against you. It is a separate case you file once the original one ends, and it is the most direct way to recover real money damages.
To win, you generally need to prove four things:1Legal Information Institute. Malicious Prosecution
- Favorable termination. The original case ended in your favor. This is non-negotiable; you cannot bring a malicious prosecution claim while the original lawsuit is still pending.
- No probable cause. No reasonable person in the plaintiff’s position would have believed there were legitimate grounds for the original lawsuit.
- Malice or improper purpose. The person who sued you did so for a reason other than winning on the merits, such as to harass you, damage your reputation, or force a settlement on an unrelated dispute.
- Damages. You suffered actual harm from defending the original case, whether financial, emotional, or reputational.
The usual burden is a preponderance of the evidence, meaning each element is more likely than not. Malice is where most claims collapse. Proving what motivated someone to sue requires more than showing they lost. You need evidence of bad intent: threatening communications, a pattern of retaliatory filings, or facts showing the plaintiff knew the claims were fabricated before filing.
People sometimes worry that the litigation privilege, which protects statements made in court proceedings from most tort claims, will shield the person who sued them. Courts in most states carve out an explicit exception for malicious prosecution and abuse of process. The privilege is not a defense to these specific claims.
Suing for Abuse of Process
Abuse of process addresses a different problem. Malicious prosecution is about filing a baseless case; abuse of process is about weaponizing legitimate legal tools for an illegitimate purpose. Someone might file a lawsuit with colorable claims and then use discovery subpoenas to dig up material for a business competitor, or use the pressure of ongoing litigation to force you into an unrelated deal.
The elements are generally:2Legal Information Institute. Abuse of Process
- Misuse of a legal procedure. The other party used a court process in a way it was not designed for.
- Ulterior motive. The misuse served a purpose beyond the legitimate goals of the litigation.
- Resulting harm. You suffered damages because of the misuse.
The advantage over malicious prosecution is that you do not always need to show the original case lacked probable cause or ended in your favor. The claim focuses on how the procedure was used, not whether the underlying lawsuit had merit. The trade-off is that abuse of process can be harder to prove in practice, because you need concrete evidence that a specific procedure was twisted toward an improper goal.
Fighting Back While the Case Is Still Pending
You do not have to wait for the original case to end. Federal and state courts have built-in mechanisms to punish bad-faith litigation while it is still in progress, and these are often faster and cheaper than filing a separate lawsuit later.
Rule 11 Sanctions
Federal Rule of Civil Procedure 11 requires every attorney or unrepresented party who signs a court filing to certify that it has evidentiary support, a valid legal basis, and is not being filed for an improper purpose like harassment or delay.3Cornell Law Institute. FRCP Rule 11 When someone violates this rule, the court can order them to pay the other side’s reasonable attorney’s fees and litigation expenses. A penalty paid directly to the court is also on the table, as are non-monetary orders like required legal education.
Rule 11 has a built-in safety valve. After you serve a sanctions motion on the opposing party, they get 21 days to withdraw or fix the offending filing before you can bring the motion to the judge.3Cornell Law Institute. FRCP Rule 11 This “safe harbor” period gives the other side a chance to back down. If they do not, the court can also hold the attorney’s law firm jointly responsible. Most states have adopted rules modeled on Rule 11, though specifics vary.
28 U.S.C. § 1927
A separate federal statute targets attorneys directly. Under 28 U.S.C. § 1927, an attorney who unreasonably and vexatiously drags out proceedings can be personally ordered to pay the excess costs, expenses, and attorney’s fees their conduct caused.4Office of the Law Revision Counsel. 28 USC 1927 – Counsel’s Liability for Excessive Costs Where Rule 11 focuses on the initial filing, this statute covers ongoing bad-faith behavior throughout the case. An attorney who files pointless motions, refuses reasonable discovery, or otherwise stalls to increase your costs is personally on the hook.
Discovery Sanctions
Frivolous litigation often comes with frivolous discovery: demands for irrelevant documents, refusals to produce evidence, or skipped depositions designed to waste time and money. Federal Rule of Civil Procedure 37 gives courts broad authority to deal with this. If a court orders a party to cooperate in discovery and they refuse, consequences can include striking their pleadings, prohibiting them from presenting certain evidence, entering a default judgment against them, or holding them in contempt.5Cornell Law School | LII / Legal Information Institute. Rule 37 – Failure to Make Disclosures or to Cooperate in Discovery; Sanctions In nearly every discovery sanction scenario, the court must also order the offending party or attorney to pay the other side’s reasonable expenses, including attorney’s fees.
Anti-SLAPP Motions
About 40 states and the District of Columbia have enacted anti-SLAPP laws designed to quickly dispose of meritless lawsuits that target someone’s exercise of free speech or right to petition the government. SLAPP stands for Strategic Lawsuit Against Public Participation. If someone sues you for speaking at a town meeting, posting an online review, or filing a government complaint, an anti-SLAPP motion may let you shut the case down early.
These statutes generally follow a two-step process. You first show the court that the lawsuit targets activity protected by free speech or petition rights. The burden then shifts to the plaintiff to demonstrate their claim has enough merit to survive. If they cannot, the case is dismissed. In states with strong anti-SLAPP protections, attorney fee awards to the winning defendant are mandatory rather than discretionary.
One important limit: the U.S. Supreme Court’s January 2026 decision in Berk v. Choy cast serious doubt on whether state anti-SLAPP statutes work in federal court. The Court held that when a state procedural law conflicts with the Federal Rules of Civil Procedure, the federal rules control. Because anti-SLAPP statutes typically require plaintiffs to produce evidence early, legal commentators have noted this conflicts with federal pleading standards under Rules 8 and 12, which only require a short statement of the claim. If your case is in federal court, relying on an anti-SLAPP motion is now much riskier.
What You Can Recover
If you win sanctions, a malicious prosecution claim, or an abuse of process claim, recoverable damages fall into several categories.
- Attorney’s fees and litigation costs. The money you spent defending the frivolous case, including court costs, expert fees, and your lawyer’s bills. This is the most common and most straightforward category.
- Emotional distress. Compensation for anxiety, humiliation, and reputational harm caused by the baseless litigation. You will generally need more than your own testimony to recover meaningful amounts.
- Financial losses. Lost wages, lost business opportunities, or other economic harm traceable to the frivolous lawsuit.
- Punitive damages. In cases involving especially egregious or malicious conduct, courts can award punitive damages designed to punish the wrongdoer rather than compensate you. These require a higher showing of bad faith and are not available in every jurisdiction.
Keep in mind that most of these awards are taxable. Damages for physical injuries or physical sickness are excluded from gross income, but a typical malicious prosecution recovery does not involve physical injury. Emotional distress damages are generally taxable, and punitive damages almost always are.6Internal Revenue Service. Tax Implications of Settlements and Judgments A tax professional should look at any settlement or judgment before you spend it.
Filing Deadlines
Malicious prosecution and abuse of process claims have statutes of limitations that start running once the original case ends in your favor. The deadlines vary significantly by state. Some give you just one year from the date of favorable termination. Others allow two or three years, and a few provide longer windows. Missing this deadline almost certainly means losing your right to sue, regardless of how strong your claim is. Identify your state’s deadline as soon as the original case concludes.
Why These Cases Are Hard to Win
Courts are deliberately cautious about penalizing people for filing lawsuits, even bad ones. The legal system values open access to courts, and judges worry that aggressive punishment for weak claims would discourage legitimate lawsuits brought by people who are not sure they will win. That policy concern works against you.
Malicious prosecution has the highest bar. Proving malice with concrete evidence is genuinely difficult. People rarely announce improper motives in writing, and courts will not infer malice just because the original lawsuit was weak. You need something more: a pattern of harassment, evidence the plaintiff fabricated facts, communications showing the lawsuit was leverage in an unrelated dispute, or similarly direct proof of bad intent.
There is also a practical cost calculation. Filing a malicious prosecution or abuse of process lawsuit means more attorney’s fees, more discovery, and more time in court. Federal court filing fees alone run about $405, and state court fees range from roughly $75 to $500 before you account for service costs, motion fees, and your attorney’s hourly rate. If the person who sued you frivolously has no assets, winning a judgment may not be worth the expense of obtaining it.
Some commercial liability insurance policies cover malicious prosecution under their “personal and advertising injury” provisions. If the person who filed the frivolous suit was acting in a business capacity, their insurer may be on the hook for your damages, which improves your odds of actually collecting. Individual filers acting outside any business context rarely have relevant coverage, so check for assets before investing in another round of litigation.
Bar Complaints Against the Opposing Attorney
Beyond what you can recover personally, the attorney who filed the frivolous case faces professional exposure. The American Bar Association’s Model Rule 3.1, adopted in some form by every state, prohibits lawyers from bringing or defending a case unless it has a non-frivolous basis in law and fact.7American Bar Association. Rule 3.1 – Meritorious Claims and Contentions Violating this rule can trigger a state bar complaint, disciplinary proceedings, and sanctions ranging from private reprimand to suspension or disbarment.
A bar complaint will not put money in your pocket. But attorneys care about their license, and the threat of a disciplinary investigation sometimes accomplishes what a sanctions motion cannot. You can file a bar complaint whether or not you pursue a separate lawsuit.